Just before Christmas we covered the government’s plans to give the vote to prisoners serving sentences of less than four years, a delayed response to the adverse court ruling on the current rules from 2005 which the Labour government had not yet properly responded to.

Unsurprisingly, the plans have triggered opposition in some parts of the Conservative Party, including from Paul Goodman over on ConservativeHome: “The essence of the Clegg/Harper case is that the Government has no alternative. However, there at least four”.

Obviously this will finally discharge the government’s clear obligation to change the law to comply with the judgment in Hirst v UK, in which the European Court of Human Rights ruled that our current law, which disenfranchises all convicted prisoners, breaches Article 3 of Protocol 1 to the European Convention on Human Rights. That obligation became all the more pressing following the Court’s very recent “pilot judgment” in Greens & MT v UK ordering the UK to bring forward legislation to comply with Hirst within six months. Britain will be out of the dock, and not at risk of the embarassment of being the first state to face new “infraction proceedings” in Strasbourg.

The difficulty the government faced was how far to go. On the one hand, some people urged a “minimalist” approach to implementing Hirst, allowing a small number of less serious offenders to vote so as merely to remove the “blanket” ban on prisoners voting which was the heart of the trouble. On the other hand, the post-Hirst case of Frodl v Austria seemed clearly to threaten that any solution would be unsatisfactory unless it gave the vote to the great majority of prisoners, with only a judge able to take it away in rare individual cases involving, for example, election fraud. That was a judgment I criticised severely in an earlier post.

But the ECtHR seems to have realised it might have gone too far. At least, in Greens (see paras. 112-114) it seemed to step back a bit from Frodl and make clear the government had a range of policy options, while of course pointing out that it’s likely to have to scrutinise whatever is chosen in due course.

The main objection those on the right-wing appear to have, as far as I can tell, is that ‘people in prison are being punished for a crime’ and therefore they forfeit some of their fundamental human rights.

To an extent, I think, we accept that this is true. It would be crazy to ban prisons because they represent a removal of liberty- they are necessary in order to deter criminals, protect society and ultimately to provide a safe space to reform vulnerable people.

However, think seriously about how much of a deterrent losing the vote would be, to anyone that isn’t a seasoned and enthusiastic politico?

Can you really imagine some ruffian not being put off by the prospect of long years kept away in lonely and terrifying confinement, yet quaking in their shoplifted boots at the idea of not being able to cast their vote?

The second measure announced … was that judges will have a discretion to impose a voting ban on any convict serving a sentence of less than four years. Superficially this looks rather clever. It will, though, inevitably lead to further anomalies. What guidance will judges have on the appropriateness of this additional penalty, and what grounds will there be to appeal against it? What is to stop some judges imposing a vote-ban on almost every prisoner who comes before them, and others never imposing it at all?

Unless there are very strict guidelines, under these new rules two prisoners, sentenced to the same jail term for very similar offences, may find themselves on opposite sides of the franchise divide. On the other hand, if the guidelines are restrictive enough to frustrate the exercise of judicial discretion – in other words, if the voting ban comes to be imposed semi-automatically on certain categories of offender – then we are back with the arbitrariness that the ECHR finds so objectionable.